U.S. Customs and Border Protection’s policy and practice of prohibiting the use of cameras and video recorders at or near U.S. ports of entry is unconstitutional, said the American Civil Liberties Border Affiliates and the law firm Morrison & Foerster LLP in a lawsuit filed today. Clients in the case, two U.S. citizens were attempting to document environmental harms and human rights abuses when border agents stopped, detained, and interrogated them and then deleted their photographs. The citizens hope that the court will order the Department of Homeland Security to end its policy of interfering with Americans’ free speech right to take photographs and make video recordings of matters of political and human rights interest.

“The border is not a Constitution-free zone,” said David Loy, legal director of the San Diego ACLU. “Border agents are not above the law, and the law guarantees our right to hold them accountable by documenting their conduct.”

The suit charges that Ray Askins, a U.S. citizen who lives in Mexicali, and Christian Ramirez, a U.S. citizen who lives in San Diego, were stopped in separate incidents on the U.S. side of the border.

Askins was conducting research for a report about excessive pollution caused by the inspection system at the border for an environmental conference when he was stopped. Several border agents told him they would “smash the camera” if he did not delete photos he took of a secondary inspection area at the Calexico Port of Entry. He was attempting to demonstrate that the Customs and Border Protection (CBP) does not make full and proper use of inspection areas, creating longer delays at the border crossing and thus causing more pollution from emissions of vehicles waiting in line to cross. Askins said that the officers who confronted him behaved aggressively even though Askins was not posing a threat or resisting. He was handcuffed and subjected to an invasive and embarrassing physical search. His camera was confiscated and, when it was returned to him, all but one photograph he had just taken at the port of entry had been deleted.

Ramirez, who works for Alliance San Diego, a nonprofit social justice group that, among other things, monitors human rights issues along the U.S.-Mexico border, had just crossed the border when he observed male CBP agents patting down women. He snapped several photos, because it appeared the agents were only searching women. Immediately, two men who appeared to be private security officers approached him, asked for his personal identification documents, and asked him to stop taking photographs. CBP agents soon appeared, confronted Ramirez and his wife, and asked why he was taking photographs. When he refused, an Immigration and Customs Enforcement agent said, “Give me one other reason to take you down.” The officer took the Ramirezes’ passports and his phone, and deleted all the photos Ramirez had just taken.

Official CBP security policies prohibit visitors at CBP-controlled facilities from using cameras and video recording devices without prior approval from the senior CBP official or someone she or he designates. The ACLU lawsuit charges that the policies violate the First Amendment and that Americans have the free speech right to document the public operations of law enforcement agencies.

“Americans have a right to chronicle the activities of law enforcement,” said M. Andrew Woodmansee, partner with Morrison & Foerster. “The Department of Justice recently has stated that the right of a citizen to gather information about government officials –including photographs—‘serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.’ While the government has an interest in guaranteeing the security of the United States, it should have no role in stifling speech or violating our right to be secure in our person and our papers.”